[arin-discuss] No quorum in last election

[Dean Anderson]

On Mon, 4 Feb 2008, Dean Anderson wrote:
> 
> On Mon, 4 Feb 2008, John Curran wrote:
> 
> > At 8:17 AM -0700 2/4/08, Mike Lieberman wrote:
> > >The question becomes, of those who did not physically attend the meeting, how
> > >many submitted ballots and did that number satisfy the need for a quorum as
> > >stated in the by-laws?
> > 
> > Mike -
> >  
> >    Per ARIN's Bylaws, there is no meeting for election of directors, as it
> >    is not required per Virginia law.   
> 
> John's claim is absolutely false. 

Oops. Forgot to include the evidence of meeting.

ARIN Bylaw VI.i Election Results states:

 "The President and one member of the Board of Trustees shall, in
  cooperation with ARIN's General Counsel, tally the votes and certify
  that the election was held following the approved voting procedures."
  
This is a meeting of specific ARIN staff to count the ballots.  Members
are represented by their ballots.  There is no mention of quorum
requirements and no specific exemption from quorum requirements in the
bylaws, as is necessary under Virginia Law to be exempt from quorum
requirements.

Blacks Law Dictionary also gives a definition of meeting:
  
 "A coming together of persons; an assembly. Particularly, in law, an    
  assembling of a number of persons for the purpose of discussing and
  acting upon some matter or matters in which they have a common
  interest; [...]"

Then as follows regarding quorum requirements.

> The Virginia Law is absolutely clear about that.  When not specified
> in the bylaws, a quorum of 10% is required.
> 
> The question of fact is whether the ARIN bylaws specify a quorum. The
> ARIN bylaws do not specify a quorum. So therefore, the default quorum 
> specified in Virginia law applies.
> 
> The bylaws merely allow for electronic and mail-in voting, per the
> requirements of the Virginia Nonstock Corporation Act Section
> 13.1-846(B):
> 
>   B. When directors or officers are to be elected by members, the bylaws
>   may provide that such elections may be conducted by mail. If
>   authorized by the board of directors, any requirement that any vote of
>   the members be made by written ballot may be satisfied by a ballot
>   submitted by electronic transmission, provided that any such
>   electronic transmission shall either set forth or be submitted with
>   information from which it can be determined that the electronic
>   transmission was authorized by the member or the member?s proxy.
> 
> There is nothing inconsistent between Section 13.1-846(B) and Sections 
> 13.1-849.
> 
> > The full membership participates in the election via electronic ballot
> > over a seven day period, as stated in ARIN's bylaws.
> 
> This is also not the case. Black's Law dictionary gives a definition of
> participation:
> 
>   "To prove "participation" in a criminal enterprise, for purpose of
>   aiding and abetting, there must be evidence to establish that 
>   defendant engaged in some affirmative conduct, that is, that defendant
>   committed an overt act designed to aid in success of the venture;  
>   prove of mere negative acquiescence will not suffice"
> 
> The entire membership _can_ certainly participate by electronic ballot.  
> But it is not the case that they did participate.  Participation by
> electronic ballot requires a ballot to be received by ARIN.  Where are 
> these ballots indicating "abstain"?
> 
> 
> > There is no quorum requirement stated in the Bylaws.
> 
> Indeed. And so therefore, Virginia Law VNCA Section 13.1-849 applies. To
> exempt a corporation from Section 13.1-849, one must explicitly state
> the quorum requirement. If no quorum is to be required for a
> corporation, that fact must be stated explicitly because it contradicts
> the default set by Virginia law in section 13.1-849.
> 
> 
> 

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